Paras Ahuja
Introduction
NOTA or “None of the Above” option is a window provided for those voters, who would prefer to not vote for any of the candidates contesting election in their constituencies, expressing their dissent and disapproval. The use of this democratic tool of protest by the Indian citizenry has been on the rise, as is evident from the 2019 Lok Sabha electoral polls, wherein a sizeable chunk comprising 15 parties got lesser vote share than NOTA. By means of this article, the tool of NOTA, as is currently operating in our country, is analysed in light of its effectiveness and adherence to the democratic ideals.
NOTA: Jurisprudential Underpinnings behind the subject
In the 2013 Supreme Court judgment of PUCL v Union of India[i], the understanding of the right to vote of an Indian citizen was widened to ensure the expression of a “free and real choice”. The Court felt the need for a mechanism which could also recognise the right of an individual to not vote and ensure its effective exercise. In lieu of the same, the option of NOTA was introduced, access to which was mandated to be made on EVMs. The Court believed that an individual, who disapproves of all the contesting candidates, should not be left to exclude himself/herself from the political process by abstaining from voting. To provide them with a medium for electoral participation, the option of NOTA was introduced.
Justice P Sathasivam, while delivering the judgment opined that negative voting (or NOTA) could bring about “a systemic change in polls and political parties will be forced to project clean candidates”. The vote of NOTA was considered analogous to a feedback mechanism, the presence and fear of which was thought to serve as a stimulating factor for the parties, lest the public disapproval would be patently evident.
The idea behind NOTA is rooted in reaffirming an individual’s right to dissent and disapproval in a democracy. If one were to import the historical and jurisprudential findings at this stage, it is something that John Stuart Mill also concurs with Chapter III of his work “On Liberty”. It is a democratic principle that individuals must be empowered enough to be able to express their dissent. The Apex Court of India, too, in the case of Romila Thapar v. Union of India[ii] held that dissent is the safety valve of democracy and is nestled in an individual’s right to freedom of speech and expression under Article 19(1)(a), Constitution of India. In order to give effect to this right, the need for an option like NOTA was felt.
Is NOTA Merely A Cosmetic Right?
However, this vote of disapproval is merely symbolic in nature. It’s a virtual power, the exercise of which doesn’t make any real difference in the formation of a government. In simpler words, the NOTA votes are not counted in the number of total votes cast. Therefore, regardless of the percentage of NOTA voters, it would not impact the election results in any way. In India, even if out of a total of 100 votes polled (hypothetically), 99 are for NOTA, the candidate securing that one vote would be declared the winner, and therefore the representative of all those 100 citizens. He would have rather secured 100% votes, according to the official tally, as NOTA votes are discarded as invalid for that purpose. It’s a feedback mechanism, that doesn’t mandate for a change. There are several instances[iii] in India’s electoral history, wherein the winning margin of the candidate with the highest vote share, was not even half of the total NOTA share. In such situations, had the NOTA voters not used their right vested in this pseudo-democratic tool and voted otherwise, it could have massively changed the political organization of our country. This idea of a democratic process is evidently erroneous. It does away with the principle of giving effect to the choice of the people, even in how the first past the post system in India partially recognises it. It is disturbing to realise that the right of expressing your disapproval and dissent in a democracy comes at the cost of losing your right to make a real choice in the decision of the electoral process. In a scenario where a person disapproves of all the various candidates contesting for the election, the only choice he/she has is to give up on his right to vote, which would at least make a difference in electoral results, and vote for NOTA or exercise his right to vote for a candidate he/she disapproves of. This prompts us to think: whether this right of dissent is even real?
The problem lies in how, there is no distinction made between citizens who abstain from voting and those who express their disapproval by voting for NOTA. While the former is tantamount to not exercising your right to vote, the latter class is actually exercising its right to not vote, like a conscientious and sincere citizen. There exists a reasonable differentia between these two classes, and therefore it mandates a differential treatment. Discarding the latter class from the electorate is undemocratic, because first, it violates the principle of Universal Adult Franchise, and second, it only provides with namesake power of dissent, which acquires a quintessential position in a democratic setup.
The states of Maharashtra[iv], followed by Haryana[v] have, however, laid the edifice for a more real democratic setup in the country, by giving due recognition to the NOTA votes, and treating them in a similar way, as they would treat any other vote. In a scenario, where the NOTA votes are more in number than each of the other candidates (i.e. if it gets the maximum number of votes), it would lead to invalidation of the election and fresh polls would then be conducted in both these states. The State of Haryana even went ahead of that in implementing NOTA in its true spirit, by mandating for the disqualification of those candidates who got lesser votes than the NOTA tally, in the follow-up elections.
Conclusion and The Way Forward:
In order to preserve the true democratic values, it is very pertinent for us to provide real power to the provision of NOTA in India. A major challenge to the accounting of NOTA votes in the total tally is the fact that NOTA is not representative of a human face; it is a virtual entity, merely reflective of the political dissatisfaction among the populace. However, we should give some vantage point to the concept of NOTA by considering it to be emblematic of the need for re-election. A majority vote share in favour of NOTA is reflective of the decision of the electorate of electing someone outside the candidates contesting. A similar interpretation can also be seen in Paragraph 1 of Article 258 of the Constitution of Columbia[vi], which mandates re-election for the post of governor, mayor or member of a public body, in a scenario where the blank votes (i.e. the NOTA votes) constitute majority of the total number of valid votes.
A cardinal feature of a true democracy is its ability to offer real choice and not compel the election from a group of people when the majority disapproves of it. Therefore, in a situation where NOTA gets the maximum number of votes, fresh polls should be conducted. This will serve bi-partite purpose: it will ensure enough stimulation for the parties to work effectively in order to secure a winning position, and do away with the problem of weak opponent parties leading to compromise-voting (or insincere voting), and second of all, it will empower people, in the real sense, in a truly democratic way, to express their disapproval without losing their right to.
[i] PUCL v Union of India; AIR 1997 SC 568
[ii] Romila Thapar v. Union of India
[iii] It received more votes than the victory margin from 22 seats in the Madhya Pradesh Assembly elections, 2018; 30 seats in Gujarat elections (2017); 25 seats in Tamil Nadu (2016); and 23 in West Bengal (2016).
[iv] Order, State Election Commission, Maharashtra (Nov. 6, 2018) https://mahasec.maharashtra.gov.in/Site/Upload/Pdf/Order%20of%20NOTA.pdf
[v] Order, State Election Commission, Haryana (Nov. 22, 2019) http://secharyana.gov.in/web/assets/uploads/2017/02/order%20NOTA%20-%202018.pdf
[vi] Paragraph 1, Article 258, Constitution of Columbia
The author is a student at National Law University, Jodhpur
Image: FeedingTrends.com
Constitutional Law Society 